Why Has Chief Justice Roberts Moved From Umpiring To Batting On Healthcare? (Forbes.com) June 26, 2015

Could someone please remind Chief Justice John Roberts of his opening statement to the Senate Judiciary Committee in his confirmation hearings in 2005? That’s when he described his all-important judicial philosophy by saying: “Judges are like umpires. Umpires don’t make the rules; they apply them…I will remember that it’s my job to call balls and strikes and not to pitch or bat.” I ask because his majority opinion in the King v. Burwell case this week is the second time he has rewritten the Affordable Care Act (ACA) in order to save it, moving out of the umpire’s stance directly into the batter’s box.

In King v. Burwell, the Court needed to decide whether the phrase “an Exchange established by the State” meant just state or could include federal exchanges. Justice Roberts, writing for a 6-3 majority of the Court, found the language was ambiguous, which permitted the Court to look more widely at the purpose of the law and decide its purposes would not be accomplished if state didn’t also mean federal. In his sharp dissent, Justice Scalia said, “Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

The general view around Congress had been that the language had simply been a mistake. Indeed, the Court acknowledged that the ACA “contains more than a few examples of inartful drafting.” The Court cited a few reasons for this, including debates behind closed doors and the use of a “reconciliation” legislative procedure that limited debate and amendments. I could add a couple more: passing a huge overhaul of a major system like healthcare without sufficient care (Nancy Pelosi’s famous, “but we have to pass the bill to find out what’s in it”) and slamming it through on a straight party line vote. As the old car repair commercial used to say, you can pay me now (preventive maintenance, getting it right) or you can pay me later (repairs) and this law has been paying later.

But Roberts apparently does not want the ACA to pay too much for its repairs by returning it to Congress to get it right. So twice now, he has essentially rewritten the bill to fix it himself. In the first case, the Court having found that Congress lacked power to pass the ACA under its commerce clause power, Roberts reinvented its basis as a bill valid under the taxing power. This time, he reinvented State Exchange (capital letters) to mean state and federal.

It is not the role of the Court to fix another branch’s mistakes. So why is Roberts willing to do this? I believe it is a misguided calculation that he has to engage in a little judicial activism in repairing the law in order to avoid a perception of even greater judicial activism by invalidating the law. He seems to be so concerned about lowering the volume on controversial Supreme Court decisions that he is willing to be a judicial activist in order to protect the Court’s reputation against charges of judicial activism. It makes no sense, in the same way that the officer who said “We had to burn down this village in order to save it” made no sense in Vietnam.

John Roberts turns out to be another disappointing judicial appointment for conservatives, moving strike zones, saying words have no obvious meaning, and rewriting the law to fix Congressional errors.